NOT TO BE PUBLISHED 

94-ORD-118

October 5, 1994

In re: Barbara Sandage/ Natural Resources

and Environmental Protection Cabinet

OPEN RECORDS DECISION

This appeal originated in a request for public records submitted by Ms. Barbara Sandage, a paralegal in the law office of Ronald R. Van Stockum, Jr., to the Natural Resources and Environmental Protection Cabinet on August 23, 1994. Ms. Sandage requested access to "any and all documents and information pertaining to . . . [a] new sewer plant being proposed or considered by Sanitation District No. 1 of Shelby County, located at or near P.O. Box 728, Shelbyville, Kentucky 40066-0728." On behalf of the Cabinet's Facilities Construction Branch, Division of Water, Mr. William B. Gatewood partially denied Ms. Sandage's request in a letter dated August 30, 1994. Although he agreed to make available to her the wasteload allocation request from Sanitation District No. 1 of Shelby County and a response letter from the Division of Water, Mr. Gatewood refused to release preliminary plan sheets indicating possible plant locations pursuant to KRS 61.878(1)(h) and (i), and a memo to file on an in-house meeting dated May 26, 1994, which he characterized as a preliminary recommendation exempt from disclosure pursuant to KRS 61.878(1)(i).

In her letter of appeal to this Office, Ms. Sandage argues that any information from the plan sheets of possible plant locations or from the memorandum of the May 26, 1994, in-house meeting, which was communicated orally or in writing to Sanitation District No. 1, forfeited its preliminary status and must be released. The issue thus presented in this appeal is whether the Natural Resources and Environmental Protection Cabinet properly relied on KRS 61.878(1)(h) and (i), now codified and hereinafter referred to as KRS 61.878(1)(i) and (j), in partially denying Ms. Sandage's request. For the reasons set forth below, we conclude that the Cabinet's partial denial of her request did not violate the Open Records Act.

KRS 61.878(1)(i) and (j) exclude from the mandatory disclosure provisions of the Open Records Act:

These exemptions are intended to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within the agency and between agencies. OAG 86-64; OAG 88-24; OAG 88-85; OAG 89-34; OAG 89-39; and OAG 90-97. The purpose underlying these exemptions is discussed at page 4 of OAG 88-85, where this Office opined:

If, however, the predecisional documents are incorporated into final agency action, they are not exempt.

This dichotomy is best illustrated in City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982). In that opinion, the Kentucky Court of Appeals held that the investigative files of the City police department were exempt from public disclosure as preliminary documents. At page 659, the court reasoned:

See also, OAG 86-64 (holding that monthly and annual reports submitted to central state government by one of its agencies in the field can be withheld under KRS 61.878(1)(i) and (j) as long as the reports neither indicate final agency action nor involve the incorporation of a preliminary report into a final report of the agency); OAG 89-34 (holding that a draft report submitted by the U.S. EPA to Kentucky's Division of Air Quality is a preliminary document, and does not lose that character by having been submitted for review and written comment of the state agency); OAG 90-97 (holding that a public official's letter to the Parole Board, containing his opinion as to whether the Board should grant parole, is exempt from

inspection unless incorporated into or made a part of the Board's final decision on the matter.)

In contrast, predecisional documents which are incorporated by the agency into its final action forfeit their preliminary status and are thereafter subject to inspection. Thus, in OAG 89-69 this Office held that a legal memorandum, which was originally preliminary in character, became a public record when it was incorporated into a notice of agency action. There, we observed:

OAG 89-69, p. 3.

Ms. Sandage maintains that any information from the disputed documents that was "communicated orally or in writing to Sanitation District No. 1" forfeited its preliminary character when it was communicated. We do not agree. Assuming for the sake of argument that the records, or any part of them, were sent to the Sanitation District, this fact standing alone would not render them nonexempt. Only if the records were expressly adopted by the Division as its final action relative to the sewer plant project would they forfeit their preliminary character. No evidence has been adduced by either of the parties to this appeal to suggest that the documents have been

incorporated into final agency action. We therefore conclude that the Division of Water properly denied that portion of Ms. Sandage's request relating to preliminary plan sheets and an in-house memorandum.

Ms. Sandage may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/1147

Distributed to:

Mr. William B. Gatewood, P.E., Manager

Natural Resources and Environmental

Protection Agency

Facilities Construction Branch

Division of Water

Frankfort Office Park

14 Reilly Road

Frankfort, KY 40601

Ms. Barbara Sandage

Suite 200

745 West Main Street

Louisville, KY 40202